IN THE SUPREME COURT OHIO

STATE OF OHIO,

Appellee, Case No. 2009-0299

vs.

LYNN ROBERTS,

Appellant.

On Appeal from theHamilton County Courtof Appeals, FirstAppellate District

MERIT BRIEF OF APPELLANT LYNN ROBERTS

Robert R. Hastings, Jr. (0026041)Law Office of the Hamilton CountyPublic Defender230 East Ninth Street, Suite 2000Cincinnati, Ohio 45202(513) 946-3712Fax No. (513) 946-3707bhastings@cros.hamilton-co.ora

COUNSEL FOR APPELLANT, LYNN ROBERTS

Joseph T. Deters (0025214)Hamilton County Prosecuting Attorney

SCOTT M. HEENAN (0075734)Assistant Prosecuting Attorney

230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202(513) 946-3006Fax No. (513) 946-3017Joe.detersna hcpros.org

COUNSEL FOR APPELLEE, STATE OF OHIO

m,t^^ ^ $ vog

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE AND FACTS 1

ARGUMENT 3

Proposition of Law No. I: Where the defendant enters and completes theintensive prison program, and thereafter isreleased from confinement, the trial courtlacks authority and subject matter jurisdictionto re-sentence the defendant.

CONCLUSION

PROOF OF SERVICE

7

8

APPENDIX Appendix Page

A. Notice of Appeal to Supreme Court of Ohio 9-10B. Judgment Entry of the Hamilton County Court of Appeals (December 26, 2008) 11C. Opinion of the Hamilton County Court of Appeals 12-29D. Section 5120.032, Ohio Revised Code 30-31E. Ohio Administrative Code Section 5120-11-03 32-35

i

TABLE OF AUTHORITIES

Page No.

Cases

State of Cabrales (2008) 118 Ohio St.3d 54, 2008 Ohio 1625 ............................................2

State v. Bezak (2007) 114 Ohio St.3d 94, 2007-Ohio-3250 ................................................5

Sun Refining & Marketiniz Co. v. Brennan (1987) 31 Ohio St.3d 306, 307,511 N.E.2d112 . ......................................................................................................................................5

Statutes

R.C. 5120.032 ..................... ...........................................................................................1,4,6

R.C. 2901.04 .....................................................................................................................5,7

R. C. 2929.01 ........................................................................................................................6

Constitutional Provisions

Article I, Section 10 of the Ohio Constitution .....................................................................6

Fourteenth Amendment of the United States Constitution ..................................................6

ii

STATEMENT OF THE CASE AND FACTS

Lynn Roberts was indicted in March 2006 for possession of heroin and trafficking in

heroin. The case was assigned to Judge Ralph E. Winkler, Hamilton County Court of Common

Pleas but Judge Winkler authorized a transfer of the case to Judge Fred J. Cartolano, who was

sitting as an assigned judge. After a trial by jury, Roberts was found guilty as charged. On

August 29, 2006, Judge Cartolano sentenced Roberts to concurrent sentences of five years on

trafficking and eighteen months on possession. The judgment entry did not indicate that Judge

Cartolano was sitting by assignment for Judge Winkler nor did it state that Roberts was ineligible

for placement in the Intensive Prison Program (IPP) provided for in Section 5120.032 of the

Ohio Revised Code.

A direct appeal to the Court of Appeals for Hamilton County was filed by Roberts on

September 8, 2006. Three days later Roberts commenced his prison sentence in the Ohio

Department of Rehabilitation and Corrections (ODRC). On September 18, 2006 Roberts was

interviewed by a classification specialist and determined to be eligible for the Intensive Prison

Program. The classification specialist then contacted the Clerk of Courts Office for the

Hamilton County Court of Common Pleas to inquire as to which judge should receive the notice

regarding Roberts' approval or disapproval into the IPP. Since Judge Cartolano had retired as a

judge from the Court of Common Pleas for Hamilton County, any cases that had been on his

docket were then assigned to his successor judge, Judge Fred Nelson. A notice regarding the

placement in the IPP was faxed to Judge Nelson based upon the information the Clerk's Office

had given the classification specialist. A separate fax was sent to the Hamilton County

Prosecutor's Office regarding Roberts' eligibility for IPP but that notice did not contain the

approval/disapproval sheet. The exhibits testified to by the witnesses at the hearing verified that

1

both Judge Nelson and the Prosecutor's Office received the fax sent from ODRC. Judge

Nelson's bailiff testified that if a document was incorrectly sent to Judge Nelson that he would

determine which judge was to receive the document and place the document in the judge's mail

slot in the Clerk's Office.

Roberts entered the IPP on April 18, 2007 and successfully completed the program on

July 18, 2007 after which he was released from imprisonment. Roberts' direct appeal had

challenged the sufficiency and weight of the evidence as well as the prosecutor's conduct but it

did not challenge his sentence. On September 21, 2007 the First District Court of Appeals

upheld Roberts' convictions but sua sponte remanded the case to the trial court to enter a single

conviction under the rule set forth in the case of State of Cabrales (2008) 118 Ohio St.3d 54,

2008 Ohio 1625. When Judge Winkler directed the sheriff to return Roberts from the ODRC for

re-sentencing, he was informed that Roberts has been already been released from prison.

In preparation for the re-sentencing, Judge Winkler directed the prosecutor and defense

counsel to obtain the records from the ODRC to determine what had happened regarding the IPP

placement and release from prison. That information was presented to Judge Winkler but it was

not filed under the case number. Despite the information Judge Winkler had received, he was

still intent on re-sentencing Roberts. A Writ of Prohibition was filed in an attempt to prevent

Judge Winkler from re-sentencing Roberts but the Court of Appeals denied the writ on the basis

that the information that had been presented to Judge Winkler had not been made part of the

record which, in turn, meant that they could not consider it in determining the writ.

After the appeal on the Writ of Prohibiton was decided Roberts filed a Motion to Dismiss

based upon the argument that the trial judge did not have jurisdiction to sentence him.

2

At the motion of dismiss hearing on July 8, 2008, Roberts presented the only evidence;

including the documentary evidence from the ODRC and the testimony of the classification

specialist, legal counsel for the ODRC, and Judge Nelson's bailiff. The prosecution presented no

evidence.

ARGUMENT

Proposition of Law No. I:

Where the defendant enters and completes the intensive prisonprogram, and thereafter is released from confinement, the trial courtlacks authority and subject matter jurisdiction to re-sentence thedefendant.

The majority of the court for the First District Court of Appeals held that the trial court

had the authority to re-sentence Roberts due to fact that they concluded that the Ohio Department

of Rehabilitation and Corrections (ODRC) did not follow the notice provisions for the placement

of an offender into the IPP when they faxed the notice and did not send it be either certified mail

or e-mail.

In reaching that conclusion the majority acknowledged that the provisions regarding

which entity is to receive the notice are confusing and inconsistent. They acknowledged that the

notice may go to the duly designated successor court but then ignore the fact that is exactly

where the classification specialist was told to send the notice, since Judge Nelson was the

successor judge to Judge Cartolano. Despite the fact that Judge Winkler was not sworn in and

did not testify, the majority concluded that Judge Winkler's statements from the bench during the

motion hearing were not challenged by either party and, therefore, they considered it established

that Judge Winkler did not receive the notice. To the contrary, it was argued by Roberts that the

3

State had produced no evidence to demonstrate that Judge Winkler did not receive the notice

(T.p. 7/8/08 p.89). Roberts never accepted it as true that Judge Winkler never received the notice

of the veto letter from the ODRC. The majority in the Court of Appeals considered it

"established that Judge Winkler did not receive the notice contemplated under R.C. 5120.032

and the administrative code based upon Judge Winkler's demeanor, his statements from the

bench that he had not received notice and that he would not have, in any event, approved an IPP

placement, and the court's actions in seeking to resentence Roberts". The statements and actions

of the trial judge were not evidence to be considered as to whether the sentencing court had

received notice. The fact that the trial judge was determined to re-sentence Roberts did not

confer jurisdiction upon him to do so.

The dissent in the Court of Appeals opinion stresses the point that Roberts did everything

he was asked to do. He successfully completed the program. Upon release he became gainfully

employed and was a law abiding citizen. Roberts had no control over the Court of Appeals sua

sponte remanding his case for re-sentencing on an issue he not even raised in his direct appeal.

Had the Court of Appeals not done that, Judge Winkler would have had no reason to order

Roberts returned for re-sentencing. Roberts had no control over the trial court not including any

information on the judgment entry to indicated that Judge Cartolano was sitting by assigrnnent

for Judge Ralph E. Winkler. Likewise, Roberts had no control over the actions taken by the

personnel from ODRC regarding of the notices that were sent to the Hamilton County Court of

Common Pleas and the Hamilton County Prosecutor's Office in September 2006. Six months

passed from the time the notices were sent in September 2006 until Roberts entered the program

in April 2007. The prosecutor's office did not notify Judge Winkler or Judge Cartolano about

the possible placement of Roberts in the IPP or notify anyone of their objection to the placement.

4

Roberts had no control over the documentation not being made part of the court record

before the Writ of Prohibition was filed. All Roberts had control of was his performance in the

program and his behavior after he was released. His reward has been to serve the balance of a

five year sentence that he had every reason to believe was completed in July, 2007.

Roberts submits that he performed as he was asked to perform. He relied on ODRC to

select him and notify the sentencing court of his placement in the IPP. Once he completed the

program and was released from prison he had every reason to believe that his prison term was

over. Judge Painter calls this promise and reliance promissory estoppels. He stated in his dissent

that equity should prevail in Roberts' case, citing Sun Refining & Marketing Co. v. Brennan

(1987) 31 Ohio St.3d 306, 307, 511 N.E.2d 112.

The majority in the Court of Appeals overlooked or failed to apply the rules of

construction as set forth in Section 2901.04 of the Ohio Revised Code. That section provides in

part that, "...offenses or penalties shall be strictly construed against the State, and liberally

construed in favor of the accused" and "...construed so as to effect the fair, impartial, speedy,

and sure administration of justice." Despite categorizing the statutes and administrative code

provisions as a hodgepodge which contains confusing and inconsistent language, the majority

found a way to strictly construe the statutes against Roberts, and liberally construe them in favor

of the State. The application used by the majority below resulted in the direct opposite intent of

what governing statutory construction rules intended.

Roberts asks this court to apply the holding in State v. Bezak (2007) 114 Ohio St.3d 94,

2007-Ohio-3250, that held that where a prisoner has already served his prison term, a court lacks

the authority to re-sentence him, even to correct a void sentence. Roberts' Due Process rights as

5

guaranteed by the Fourteenth Amendment of the United States Constitution and Article I,

Section 10 of the Ohio Constitution require that decision.

Section 2929.01 (BB) of the Ohio Revised Code defines prison term as either "a stated

prison term" or "a term of prison shortened by, or with the approval of, the sentencing court

pursuant to section ... 5120.032 ... of the Revised Code". By failing to make a recommendation

regarding the placement of Roberts in the IPP program, the sentencing court approved the

shortened term.

Roberts' fate should not rest on statutes that are a hodgepodge of terms and language that

is confusing and inconsistent. Judge Cartolano never indicated anything on the judgment entry

to let anyone know he was hearing the case as an assigned judge for Judge Ralph E. Winkler nor

did he indicate he was opposed to Roberts being placed in the IPP by stating so in the judgment

entry. The State never produced any evidence that Judge Winkler even looked for the

notification form to determine if he received it once the judge was told that Roberts had been

released from prison nor did anyone state under oath that the notification was not received.

6

Conclusion

Roberts asks this Court to reverse the decision made by the majority in the Court of

Appeals opinion to prevent the unfair, unjust result reached by that Court. Roberts asks this

Court to hold that he is not subject to being re-sentenced. If the statutes are construed

consistently with the intent set forth in Section 2901.04 of the Revised Code, this Court can

insure that they are liberally construed in favor of Roberts so as to effect the fair, impartial,

speedy and sure administration of justice. Roberts was a success story for the IPP program. It

was the system that failed.

Respectfully submitted,

Robert R. Hastings, Jr. (00Law Office of the Hamilton CounPublic Defender230 East Ninth Street, Suite 2000Cincinnati, Ohio 45202(513) 946-3712- Telephone(513) 946-3707 - FaxCounsel for Appellant,Lynn Roberts

7

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was hand delivered to the Office of the

Hamilton County Prosecutor's Office, 230 East Ninth Street, Suite 4000, Cincinnati, Ohio 45202

on this 10th day of July, 2009.

Robert R. Hastings, Jr.Counsel for Appellant, Lynn Roberts

8

Arc.,,io, A

IN THE

OHIO SUPREME COURT

STATE OF OHIO, NO. ®g-®^s99Appellee, E Appeal from the Hamilton County Court

^u^ ^APpS of Appeals, First Appellate Districtvs.

LYNN ROBERTS,

Appellant.

^

FEg 13 2009C,purt of Appeals Case No. C 080571

}^pM^q^R^

LTON.OFCOIiFiSS

CAUNiY

NOTICE OF APPEAL OF APPELLANT, LYNN ROBERTS

Robert R Hastings, Jr. (0026041)Law Office of the Hamilton CountyPublic Defender230 East Ninth Street, Suite 2000Cincinnati, Ohio 45202(513) 946-3712 - Telephone(513) 946-3707 - Fax

COUNSEL FOR APPELLANT, LYNN ROBERTS

Joseph T. Deters (0025214)Prosecuting Attorney230 East Ninth StreetSuite 4000Cincinnati, Ohio 45202(513) 946-3000 - Telephone

COUNSEL FOR APPELLEE, STATE OF 01110

FED a 0 2o09

CLERk OF COURTSUPREME COURT OF OHIO

9

FLEDFEB G 9 2JUN

CLERK OFCOURT` SUPREME COURT OF OHIO

. Notice of Aoneal of Appellant. Lynn Roberts

Appellant Lynn Roberts hereby gives notice of appeal to the Supreme Court of Ohio from

the judgment of the Hamilton County Court of Appeals, First Appellate District, entered in the

Court of Appeals case no. C-080571 on December 26, 2008.

This case involves felony convictions and raises a substantial constitutional question as

well an issue of public or great general interest.

Respectfully submitted,

Xo^^ vt L^Robert R. Hastings, Jr. (0026 )Law Office of the Hamilton untyPublic Defender230 East Ninth Street, Suite 2000Cincinnati, Ohio 45202(513) 946-3712 - Telephone(513) 946-3707 - FaxAttorney for Appellant, Lynn Roberts

Certificate of Service

I certify that a copy of this Notice of Appeal was hand delivered to the Office of the

Hamilton County Prosecutor's Office, 230 East Ninth Street, Suite 4000, Cincinnati, Ohio 45202

on the 9th day of February, 2009.

Robert R. Hastings; Jr.Attorney for Appellant, Lynn itbbbrts

/o

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, APPEALNO. C-o$o571TRIAI. NO. B-o6o2578

Plaintiff-Appellee,

V5.

LYNN ROBERTS,

Defendant-Appellant.

EN-B ERED

DEC 2 6 200$

JUDGMEN7'ENTRY.

This cause was heard upon the appeal, the record, the briefs, and arguments.

The judgment of the trial court is affirmed for the reasons set forth in the Opinion filed

this date.

Further, the court holds that there were reasonable grounds for this appeal, allows no

penalty and orders that costs are taxed under App. R. 24.

The court further orders that 1) a copy of this Judgment with-a copy of the Opinion

attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution

under App. R.27.

To The Clerk:

Ent.er upon the Journal,qf the Court on December z6, zoo8 per Order of the Court.

Ittiiiilllil

I2FPoew x G

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vS.

LYNN ROBERTS,

Defendant-Appellant.

APPEAL NO. C-o8o571TRIAL NO. B-o6o2578

OPINION.PRESENTED TO TtiE CLERK

OF COURTS FOR FILIIdG

DEC 2 b 2008

COURT OF APPEALS

Criminal Appeal From; Hamilton County Court of Common Pleas

JudgmentAppealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 26, 2oo8

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Robert R. Hastings, Jr., and CChrisMcEuilley, for Defendant-Appellant.

Note: We have removed this case from the accelerated calendar.

IZ

OHIO FIRST DISTRICT COURT OF r11'PEAL.S

CurnvmcHAM, Judge.

{¶I} Defendant-appeIlant Lynn Roberts appeals from the trial courrs order

denying his motion to dismiss and imposing the remaining portion of his five-year

prison term. W'hile his direct appeal was pending in this court, Roberts was selected

for placement in an Intensive Program Prison ("IPP")-a 9o-day "boot camp"

alternative to prison. Roberts completed the program and was released from prison.

Thus, he asserts, the trial court lacked jurisdiction to reimpose a term of

imprisonment. Because the record does not support Roberts's contention that he was

properly selected for an IPP, we affirm.

{¶2) This is the third time that this court has reviewed the trial court's

imposition of felony sentences against Roberts for heroin traff'icld.ng and possession. In

September 2007, this court remanded the case to the trial court for it to enter a single

conviction under the rule of State v. Cabrales ("Roberts 1").3 And in June 2008, we

denied Roberts's petition for a writ of prohibition seeking to prevent his resentencing

("Roberts II")? Now, the trial court has rejected Roberts's argument that it lacks

jurisdiction to resentence him under our Roberts I mandate and has sentenced

Roberts to a single prison term for heroin trafficking.

{¶3}

Roberts l-Remand for Sentencing Under Cabrales

The factual background of this case was set forth in Roberts II. We noted

there that "[i]n March 20o6, Roberts was indicted in case number B-o6o2578 for

trafficking in heroin witbin iooo feet of a school, in violation of R.C. 2925.03(A)(2),

punishable as a third-degree felony, and for possession of heroin, in violation of R.C.

I See State v. Roberts, ist Dist. No. Go6o756, 2007-Ohio-4882.= See Roberts v. Krinkler, 176 Ohio App.3d 685, 2oo8-Ohio-2843, 893 N.E.2d 534.

2

ENTERED

DEC 2 62008

(;

OHIO FIRST DISTRTCT COURT OF APPEAIS

2925.11(A), punishable as a fourth-degree felony. The case was assigned to [the

Honorable Ralph E. Wmkler, a judge of the Hamilton County Court of Common Pleas]

but was ultimately assigned to Visiting Judge Fred Cartolano for trial. Following a jury

trial, Roberts was found guilty, and Judge Cartolano sentenced him to a five-year prison

term for trafficking in heroin, and to a one-and-one-half-year prison term for possession

of heroin. The prison terms were to be served concurrendy. Judge Cartolano also

informed Roberts that he would be supervised for a three-year period of postrelease

control after leaving prison:'3 The sentencing entry did not contain any statement about

Roberts's eligibility for IPP placement4

{¶4J "Roberts timely appealed from these convictions in [Roberts 1]. Roberts

raised four assignments of error contesting the weight and the sufficiency of the evidence

adduced to support his convictions, and alleging that his convictions were the product of

misconduct by the prosecuting attorneys. Oral argument was scheduled for July 31, 2oo7.

On September 21, 2007, this court released its decision overruling each of Roberts's

assignments of error, but sua sponte reversing the sentences on the ground that they had

improperly been imposed for allied offenses of similar import, in accordance with our

der.ision in State v. Cabrales. We remanded the case to the trial court for it to enter a

single conviction for either the trafficldng offense or the possession offense."s

{¶5}

Roberts's Selection for an Intensive Program Prison

Within one week of Roberts's September 20o6 admission to the Ohio

Department of Rehabilitation and Corrections ("the ODRC"), department personnel,

including classification specialist Kelly Taynor-Arledge, selected Roberts for an IPP.

3 Roberts II, 12.4 See R.C. 2929.i4(K), 2929•19(1)), and 5120.032.s Roberts II, %.

3

3

OHIO FIRST DIST RICT COURT OF APPEALS

While his direct appeal in Roberts I was pending in this court, Roberts completed the

program and was released from prison.

{16} An IPP is "designed to provide an alternative to traditional

incarceration for prisoners who meet" criteria for eligibility established by statute and

by regulation.6 Prisoners in an IPP undergo "a highly structured and regimented daily

routine which includes programming and counseling. The program is designed to be a

resocialization and learning period, with prisoners expected to participate in physical

activity and self-enhancement interventions."7

{117} If a prisoner successfully completes an IPP, the ODRC may reduce the

prisoner's stated prison term, or it may release him and place him under postrelease-

control supervision.8 The ODRC may place eligible prisoners in an IPP only if "the

sentencing court either recommends the prisoner for placement in the intensive

program prison * * * or makes no recommendation on placement of the prisoner **

*."9 The ODRC may not place a prisoner in an IPP if the sentencing court disapproves

the placement.1o

{Q8} The trial court may signal its approval or disapproval of an IPP

placement in its sentencing entry or in response to an inquiry from the ODRC.11 If the

court has not made a placement recommendation in its sentencing entry, and the ODRC

determines that a prisoner is eligible for an IPP, the department is required to notify the

sentencing court at least three weeks prior to admitting the offender to the IPP.12 The

6 Ohio Adm.Code g12o-n-o2(C); see, also, R.C. 2929.14{K) and 5120.032(B).7 Ohio Adm.Code g12o-u-o6(A); see, also, R.C. 5120:032(A).a RC. 5120.o32(B)(1)(b); see, a1so, RC. 2929.oi(CC) (defining "prison term" as "a stated prison tenn;[or] a term in a prison shortened by, or with the approval oi•; the sentencingjudge pursuant to section * ** "5120.032. ).9 RC. $120.032(B)(1)(a).10 See R.C. 5120.032(B)(1 (a); see, also R.C. 2929,14(K),11See RC. 2929•14(IC) ana 5120.o32(B5(1)(a). 0 DEC 2 6 200812 RC.512o.o32(B)(1)(a).

4

/5

OHIO FIRST DISTR.ICT COURT OF APPI:AIS

court then has ten days from the date of notice to disapprove the placement. If there is

no timely response from the court, the prisoner may begin the IPP.13

{¶9}

Roberts /1-A Writ of Prohibition

In October 2007, Judge Winlder ordered the sheriff to return Roberts

from the Pickaway Correctional Institution for resentencing pursuant to this court's

mandate in Roberts L Roberts had already completed an IPP and had been released

from prison. Judge Winkler nonetheless proceeded to exercise jurisdiction over

Roberts for the purpose of resentencing him. Roberts sought relief in this court by

filing for a writ of prohibition to prevent Judge Winkler from resentencing him.

{110} In Roberts II, this court denied Roberts's petition for the writ. We held

that because of defects in the stipulated record presented in that original action, "Roberts

ha[d] failed to demonstrate that the trial court is patently and unambiguously without

jurisdiction to proceed to resentence him:'14 Since the trial court possessed the authority

to determine its own jurisdiction, we held that Roberts could raise the issue that, under

R.C. 5120.032, Judge Winkler lacked the authority to resentence him at a subsequent

sentencing hearing. And we noted, "[IJf he is returned to prison, he may challenge that

ruling by way of a direct appeal as of right"ls

The Sentencing Hearring

(111) Pursuant to this court's remand in Roberts I, Judge Winkler proceeded

to resentence Roberts. Roberts filed a motion in the trial court to dismiss the

resentencing for lack ofjurisdiction.

13 See id. ("If the sentencing court does not timely disapprove of the placement, the department mayroceed ith l f i "p w p ans }.or t

14 Roberts II at ¶23.1s Id.

5

En1"EF, R ED

DEC z B 2o0a

OHIO FIRST DISTRICI' COURT OF APPEAIS

{112} On July 8, 2oo8, Judge Winkler held a hearing on Roberts's motion.

Taynor-Arledge testified that after Roberts had been found eligible for an IPP placement,

she prepared an ODRC Form 25o2 "Notice to Sentencing Court of Offenders

Recommended Placement into the Intensive Program Prison" for submission to the

sentencing judge. This form is referred to as the veto letter since it provided notice that

Roberts had been selected for IPP placement and, on a second page, invited the

sentencing court to indicate its approval or disapproval of the placement. Since

Roberts's sentencing entry had been signed by Judge Cartolano, she prepared to send the

veto letter to him. Presumably because Judge Cartolano was a visiting judge, his name

was not listed in her directory.

{$13} She contacted the Hamilton County Clerk of Courts by telephpne and

inquired, "[W]ho do I need to direct this case number to?" An unnamed employee of the

clerk's office informed Taynor-Arledge that Judge Frederick Nelson had assumed Judge

Cartolano's assigned cases upon Judge Cartolano's retirement. Taynor-Arledge was

unaware that Roberts's case had been assigned to Judge Winlder and had reached Judge

Cartolano only by assignment as a visiting judge. Despite the fact that Judge Nelson had

taken no part in case number B-o6o2578, Taynor-Arledge transmitted the veto letter to

his chambers by fax on September 18, 2oo6. She also transmitted byfax a copy of the

notice, without an approval page, to the Hamilton County Prosecutor's Office.

{114} Judge Nelson's bailiff, Richard McIntyre, testified that he would

occasionally receive misdirected faxes. He would then redirect the fax to the proper judge.

He had, however, no recollection of ever receiving Taynor-Arledge's fax concerning

Roberts's•placement in an IPP.

{115} ODRC staff attorney James Guy also testified. He had reviewed

Roberts's record at the ODRC. Roberts had entered

6

OHIO FIRST DISTRICT COURT OF APPEA.I.S

completed the program on July i8, 2007, two weeks before oral argument in his direct

appeal in Roberts I.

{116} We note that all parties have accepted as true that Judge Winkler never

received notice of the veto letter from the ODRC. This was the unmistakable

conclusion to be drawn from Judge Winlder s demeanor, his statements from the

bench that he had not received notice and that he would not have, in any event, approved

an IPP placement, and the court's actions in seeldng to resentence Roberts. Judge

Wmlder stated that "[t]his court, myself, personally never received anything as to the

defendant being granted this early release program, and there's no evidence or

information that convinces the court that Judge Cartolano, the judge that I assigned the

case to, received the notice either." Since neither party challenged this statement or

sought to elicit sworn testimony from Judge Winlder, we consider it established that

Judge Wmkler did not receive the notice contemplated under RC. 5120.032 and the

administrative code.

{¶17} Judge Winkler denied Roberts's motion to dismiss the sentencing

proceeding. He then proceeded to conduct a sentencing hearing and to impose

sentence on one of the two allied offenses of similar import under this court's mandate

in Roberts L16 Despite undisputed evidence that Roberts had completed the IPP, as

well as representations from his counsel that after his release from prison Roberts had

been gainfully employed and was living with his grandmother, the trial court

dismissed the heroin-possession offense and imposed a five-year sentence on the

remaining heroin-trafficking offense. The court also ordered Roberts to receive credit

for time already served.

,s See App.R. 27.

7

OHIO FIRST DISTRICT COURT OF APPEALS

The Triaf Court Had Jurisdiction to Resentence Roberts

{118) In Roberts.Il, we held that "[a]bsent being barred by the application of

RC. 5120.032, Judge Winkler is clearly authorized to [resentence Roberts]. And an

erroneous exercise of that authority can be reviewed on direct appeal."17 R.C.

2953•08(A)(4) also provides for an appeal as of right from the imposition of criminal

sentences that are entered contrary to law. Under R.C. 2953•08(G)(2)(b), we may

reverse the sentence imposed only if we find "clearly and convincingly" that the

sentence is contrary to law.18 This court must ensure that the trial court adhered to all

applicable rules and statutes in denying Roberts's motion to dismiss and in reimposing

a sentence.

{1119} In a single assignment of error, Roberts now argues that Judge Winlder

lacked both the authority and the subject-matter jurisdiction to return him to prison,

because he had served his sentence, as modified by the ODRC pursuant to R.C.

5120.032, and therefore could not have been resentenced. When a prisoner has

already served his prison term, a court lacks the authority to resentence him, even to

correct a void sentence.19

{120) The state argues that because the ODRC did not properly place Roberts in

an IPP, he did not complete his stated prison term. It claims that the ODRC did not send

notice to the proper court prior to admitting Roberts to an IPP, as required by statute and

administrative regulations. It asserts that the notice should have been sent only to Judge

Wmkler or to Judge Cartolano, the judges of the common pleas court responsible for

imposing the stated prison term, that neither of them received notice, and that the ODRC

violated its own regulations in not employing the proper means of providing notice.

ENTERED17 Robertsf7at¶22. pEC 2$ 2006ei See State V. Skeppard, ist. Dist. Nos. Go60042 and C-o6oo66, 2oo7-Ohio-24, 919 See State v. Bezak, 114 Ohio St.3d 94, 2oa7-0hio-32go, 868 N.R.2d 961, at ¶i8.

8

/4

OHIO FIRST DISTRICT COURT OF tLPPI3AIS

Which Court Must Approue /PP Placement?

(121) Since Roberts bore the burden of going forward on his motion to dismiss,

he had the unenviable task of defending the ODRC's actions. On appeal, he first argues

that the notice the ODRC sent to Judge Nelson and to the prosecutor's office was sufficient

to permit his placement in an IPP: "The Hamilton County Court of Common Pleas, the

sentencing court, was notified, but did not respond to the notification."20 He argues that

any judge of the court of common p]eas-"the sentencing court"-would have been the

proper recipient of the ODRC's veto letter seeking approval or rejection of, or acquiescence

in, Roberts's placement in an IPP.

{122} This argument must fail. The notice that the ODRC provided was not

directed to the appropriate court. The notice contemplated under R.C. 5120.032 and Ohio

Adm.Code 512o-ri-oi et seq. must be delivered either to the court that actually imposed

the stated prison term and journa6zed the sentencing entry or to its duly designated

successorcourG

{123} The language employed in the Revised Code and the Ohio Administrative

Code to identify the entity empowered to approve or to disapprove a prisoner's eligibility

for an IPP and entitled to receive notice of an IPP placement is confusing and inconsistent.

That entity is referred to by a hodgepodge of terms: "the court,"21 "the sentencing court,"2z

"the judge,"23 and "the sentencing judge."24

{124} For example, R.C. 2929.1g(D) and 5120.032 each state that "the

sentencing court" shall give or withhold permission for an offender to enter an IPP.

And R.C. 5120.032 provides that "the sentencing court" must be notified of a

20 Appellant's Brief at 7.RC. 2929•14(IC); see, also, Ohio Adm.Code 5120-11-03(B).

22 R.C. 2929.i9(D) and 5120.032.23 Ohio Adm.Code 5120-11-03(D).24 See RC. 2929.oi(CC); see, also, OhioAdm.Code 5120-11-03(D).

9

EN9TERED

UEC 9 6 2006

OV

OHIO FIRST DISTRICT CO'(SRT OFAPPPALS

prisoner's proposed placement in an IPP.zs While the term "sentencing court" is not

explicitly defined in the Revised Code, R.C. 2929.11(A), which identifies the purposes

of felony sentencing, equates the "court that sentences ain offender for a felony" with

"the sentencing court."

(125) Other code sections and administrative rules maintain that "the court," in

its sentencing entry, "expresses disapproval * * * approval * * * or [remains] silent

regarding [a prisoner's] placement" in an IPP.26 RC. 2929.14(K) also provides that

"[a]t the time of sentencing, the court may recommend the offender for" IPP placement,

may "disapprove placement," or may "make no recommendation."

{¶26) Still other portions of the administrative code dictate that the "sentencing

judge" may "disapprove [or] approve intensive program prison for the prisoner."27 Ohio

Adm.Code 5120-11-03(G) provides that "[i]f the prisoner meets the eligibility criteria *

* * of this rule * * * and, if applicable, the setntencing judge has not disapproved

intensive program prison, the director shall review all relevant information * * * and

approve or disapprove the prisoner's placement in the program." And the Revised

Code provides fbr the stated prison term to be "shortened by, or with the approval of, the

sentencing judge pursuant to section *** 5120.032."28

{97} But there is one constant in each of the various statutes and regulations.

No matter how they identify the court empowered to approve or disapprove IPP

placement, by whatever name the court is described, it is clear that the General Assembly

intended to have the court that imposed the stated prison term and joumalized the

=s R.C. 512o.o32(B)(1)(a)•z6 OhioAdm.Code 5120-:1-03(B).27 Ohio Adm.Code 5120-ii-o3(D).is RC. 2929.01(CC).

ffN-p"F--.RIED

OEC 9 6 2408

10

OHIO FIRST DISTRICT COURT OF APPEALS

sentencing entry receive the veto letter and decide whether to permit an otherwise eligible

prisoner to participate in an IPP.

{128j RC. 2929.19 identifies the "sentencing Court" as the entity that

determines, at the sentencing hearing, whether a prison term is necessary or required,

that imposes a stated prison term, that notifies the offender of postrelease control, that

journalizes the sentencing entry, and that approves or disapproves placement by

"mak[ing] a finding that gives its reasons for its recommendation or disapproval."29

Each of these functions is accomplished by a single judge, or by a judge working with a

visiting judge, and not by the common pleas court at large. Since only one judge of the

common pleas court is acting "at the time of sentencing"30 to impose a stated prison

term and to approve or disapprove placement, only one judge of the court is the proper

recipient of the veto letter.

{129} The administrative code also tracks this interpretation. Ohio Adm.Code

512o-11-o3(D) states that if a prisoner's "sentencing entry is silent" on placement in an

IPP, the ODRC shall notify "the sentencing judge" of its intention to place the applicant

in such a prison. The sentencing judge has ten days after receiving notice to grant or

withhold approval.31 The next sentence of the regulation employs the term

"sentencing court," but only to identify the sentencing court as the court that prepared

the entry and stated its intention vis-a-vis IPP placement in its sentencing entry: "This

notification process does not apply if the sentencing court finds statutory eligibility for

29 RC. 2929.19(D); see, also, State v. Jackson, 5th Dist. Nos. o5 CA 46 and o5 CA 47, 2oo6-Ohio-3994(where a trial court did not make express findings, a review of the record as a whole, including the trialcourt's remarks at sentencing, was sufficient to meet the requirements of RC. 2929.19(D]),3o RC. 2929.14(IQ•3' Ohio Adm.Code glzo-irog(D).

11

Er9?"ERED

DEC 2 B 7006

O

OHIO FIRST DISTRICr COURT OFAPPEAIS

the prisoner s placement in an intensive program prison and/or the sentencing entry

either approves or recommends such placement."32

{T30} Thus we hold that, under R.C. 5120:032, if a prisoner's sentencing entry is

silent on IPP placement, the ODRC must provide notice or seek approval from the court

that imposed the stated prison term and journalized the entry, or from its duly designated

successor court. Roberts, forced to defend policies and procedures that he had no part in

creating or canying out, nonetheless did not demonstrate that the ODRC had provided

notice to the court that had imposed his stated prison term and journalized his sentencing

entry before his selection for placement in an IPP. The only evidence of record is that

Taynor-Arledge sent notice to Judge Nelson and not to the proper sentencing judges.

{131} As Judge Painter noted in his separate concurring opinion in Roberts II,

"retirements, substitutions, and visiting judges are all in the mix."33 And perhaps both

the ODRC and the common pleas court should develop policies to avoid and to remedy

misdirected notices. But when the ODRC acts to reduce the prison term of a convicted

felon, it must act in conformity with the controlling statutes and its own regulatory

scheme. It must provide notice to the court that imposed that prison term.

ODRC Did Not Employ the Proper Means for Providing Notice

{¶32} Administrative rules and procedures enacted pursuant to a specific

grant of legislative authority have the force and effect of law.34 Pursuant to R.C.119.03

and 5120.032(A), the director of the ODRC was authorized to "develop and implement

intensive program prisons for male and female prisoners."35 Therefore, in selecting

32Id.; see, also, Ohio Adin.Code 5120-12-03(B).33Roberts II at 9z6.34 Doyle u. Ohio Bur. of Motor Vehicles (i99o), 5i Ohio St.3d 46, 554 N.E.2d 97, paragraph one ofthe syllabus; see, also, Uddin u. Embassy Suites Hotel, 213 Ohio St.3d 1249, 2007-Ohio-179i, 864N.E.2d 638,11i3.35 R.C. 5120.032(A).

12

OHIO FIRST DISTRICI' COURT OF APPEAI.S

and placing Roberts in an IPP, the ODRC was required to comply not only with the

statutory requirements but also with its own rules and regulations.

{¶33} While RC. 5i2o.o32 requires simply that the ODRC °notify" the

sentencing court of its proposed placement of a prisoner in an IPP, Ohio Adm.Code 512o-

11-03(D) identifies the proper means of providing that notice. It states that if a

prisoner is eligible for an IPP and, as here, the sentencing entry is silent on the

prisoner's placement, ODRC "shall notify, by certified or electronic niail, the

sentencing judge of its intention to place the applicant in an intensive program

prison."36 That section of the administrative code also requires the judge to notify the

ODRC of his or her approval or disapproval "within ten days after the 77zail receipt."37

{134} While the communication sent to Judge Nelson bore the statement that it

had been sent "Certified Mail Retum Receipt Requested," Taynor-Arledge actually had

sent the veto letter by fax transmission and not by electronic mail or by certified mail.

Taynor-Arledge testified that the ODRC had sent veto letters by fax in the past, but that

the ODRC now sent them by certified mail, return receipt requested. With that method,

she stated, "you know who got the form." That was not the case here.

{135} The ODRC is also required to provide other notices beyond the veto

letter. It must notify the sentencing court, in writing, when a "prisoner is accepted **

" to participate in the program,"38 when a "prisoner is released to intermediate

transitional detention or, if applicable, post-release control,"39 and when the prisoner

successfully completes "the ninety-day imprisonment phase of the program."40 The

ODRC is required to notify the sentencing court, again in writing, of the prisoner's

36OhioAdm.Code5120-11-03(D)(emphasisadded).

=̂6

37Id. (emphasis added).ag Ohio Adm.Code 5320-11-2i(B) (emphasis added).39 OhioAdm.Code gi2o-ii-2i(C).4o Id.

OI-IIO FIRST DISTRICT COURT OF APPEAIS

"expected parole release date or, if applicable, the duration of post-release control

sanction"41 and of the issuance of "a certificate of expiration of the stated prison term;

a certificate of expiration of definite sentence; or a certificate of final release."42 ODRC

staff attorney James Guy found only the veto letter sent by Taynor-Arledge in

Roberts's prison records.

{1136} Requiring the ODRC to send multiple notices to the sentencing court

reflects the General Assembly's policy of entrusting the duty of felony sentencing to the

trial courts in the first instance. A sentencing court is to be guided by the overriding

purposes of felony sentencing: "to protect the public from future crime by the offender

and others and to punish the offender. To achieve those purposes, the sentencing

court shall consider the need for incapacitating the offender, deterring the offender

and others from future crime, rehabilitating the offender, and maldng restitution to

the victim of the offense, the public, or both."43

{137} The trial court's duty of supervising feloziy sentencing does not end

with the imposition of a stated prison term. Both shock incarceration under R.C.

5120.031 and an IPP under R.C. 5120.032 allocate an important role to the trial court

even after an offender has begun his stated prison term. The ODRC's IPP screening

procedures and its communications about an offender's progress in the program yield

essential details of an offender's progress toward rehabilitation-information that a

sentencing court could use to expedite or to limit the early terrnination of the stated

prison term.

41 Id.(emphasis added).42 Ohio Adm.Code sxzo-xx-zx(D).ns R.C. 2929.it(A).

14

ENTERED

DEC ? 6 2000

OHIO FIRST DISTRICT COURT OF APPEAI S

Conclusfon

(IPS} Roberts did not demonstrate that the ODRC had provided notice to the

court that imposed his stated prison term and journalized his sentencing entry before his

selection for placement in an IPP. He also did not demonstrate that the ODRC had

employed the proper means to provide the initial placement notice and the subsequent

notices required by regulation.

{¶39} The state argues that the procedures employed by the ODRC pursuant to

statute and the administrative code violated the separation-of-powers doctrine by

conferring judicial power on an executive agency. It also notes that Roberts remained on

postrelease control at the time Judge Win}der attempted to resentence him. Since

postrelease control was part of Roberts's sentence, the state argues that Roberts had not

served his entire prison sentence and that the trial court retained jurisdiction over him.

{140} Ohio law states clearly, however, "that constitutional issues should not be

decided unless absolutely necessary."44 Since we have held that the ODRC failed to

comply with its own regulations and thus did not properly place Roberts in an IPP, we

reiterate the long-standing principle that a court will not determine constitutional claims

that are not essential to the disposition of a particular controversy.45

{141} Because we do not conclude that the trial court's denial of Roberts's

motion to dismiss and its subsequent exercise of jurisdiction and imposition of

sentence were contrary to law, we overrule the assignment of error.

{142} The trial courrs judgment is affirmed.

Judgment affirmed.

SuNDERMANN, P.J., concurs.PAiNrER, J., dissents. EN^^,^^6^

DEC 9 6 2006

44 Hall China Co. v. Pub. Utll. Comm. (1977),50 Ohio St.2d 2o6,210,364 N.E.2d 852.is See id.; see, also, State v. Meyer (1988), 61 Ohio App.3d 673, 676,573 N.E.2d to98.

15

^

OHIO FIRST DISTRICT COURT OF APPEALa4

PAINTER, J., dissenting.

(¶43) This is a case of a promise broken-by the government The majority's

result is absurd. All the legal mumbo jumbo is well and good-but they are looking at

the case backwards.

{144} Let us look at the case from a real person's viewpoint. Roberts was

sentenced for a crime. He went to prison. Prison officials deemed him eligible for a

special program. The program provided that, if you do well and complete the

program, you will be released early. Roberts successfully completed the program, was

released, was employed, and got into no more trouble. The program, designed to save

prison space for violent offenders, worked.

{¶45) Then Roberts was jerked off the street and back into prison. Why?

Because a clerk faxed a paper to the wrong number-though the paper may in fact

have reached the right place. And judges had retired, visited, and switched, so the

error, if there was one, was understandable.

(146) Roberts had done exactly what the system asked of him. But

evidently it was not enough.

Mumbo v. Jumbo

(¶47) In the majority's dissection of what the legislature pleases to call the

"Revised" Code, the terms judge, court, and serttencing court-described by the

majority as "a hodgepodge of terms'-are interpreted. Of course, they shouldn't have to

be. The law should be dear, not require dozens of paragraphs to technically reach an

unfair result

EI^TIFRFID

aEC 76 2008

16

a7

OHIO FIRST DISTRICT COURT OF APPEALS

{¶48} Because Roberts had served his prison term, the trial court lacked the

authority to resentence him.46 But the state argues that if the ODRC did not properly

place Roberts in an IPP, he did not complete his stated prison term. Of course, the

ODRC sent notice, but because of the mix-up with judges, it may not have arrived on

the desk of the judge who was being filled in for by the retired, but then visiting, judge.

We learn from the majority that because of this minor glitch, Roberts-who was

already released after successfully completing the program-must serve four more

years. The "system" has broken its promise to him.

Shouldn't the Government Keep its Promises?

{1149} The common law long ago developed a doctrine to deal with the

situation we have here. "A promise which the promisor should reasonably expect to

induce action or forbearance on the part of the promisee or a third person and which

does induce such action or forbearance is binding if injustice can be avoided only by

enforcement of the promise."47 It is called promissory estoppel. The law developed to

prevent the double-cross. And this double-cross was performed by the government.

{150} The state is one actor, whether it acts through the judge, the ODRC, or

the prosecution. Roberts had been made a promise-early release-and he relied upon

that promise in entering and completing the intensive program. The state should not

be heard to deny its promise because of a minor paperwork glitch. Yes, I know that

some courts hold that promissory stopped cannot usually be applied against the

46 See State u. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶18.47 Restatement of the Law 2d, Contracts (1g81), Section 9o.

17

^-J

OHIO FIRST DISTRICT COURT OF APPF.AIS

state98-another vestige of the original error in importing sovereign immunity to

American shores.49 But in this case, equity should prevail.

Last Chance

{151} Of course, one chance to stop this outrage fell to the trial court. The

better part of discretion would have been simply to approve the placement-since it

had clearly worked. But after reading the transcript of the hearing, one is left with the

impression that the trial court considered the placement a personal insult in need of

redress.

{¶S2} Of course, the last clear chance to derail this railroading fell to this

court. And the majority waved the train on-the train must be on technically the

wrong track even if it is to crash.

{¶53} So Roberts sits in prison, at great ex-pense to the taxpayers, rather than

working and contributing to society. The system has lied to him and double-crossed

him. And the majority examines the technicalities for 15 pages and finds that the

double-cross is legal.

{¶54} I, for one, am ashamed of a system that would allow this result.

Please Note:

The court has recorded its own entry on the date of the release of this opinion.

98 Sun Refining &Marketing Co. v. Brennan (1987), 31 Ohio St.3d 3o6, 307, 511 N.E.2d ii2.49 Garrett u. Sandusky (1994), 68 Ohio St.3d 139,144, i994-Ohio-485, 624 N.E.2d 7o4 (Pfeifer, J.,concurring).

18

ORC Ann. 5120.032 (2009) AtpE,,roix >

§ 5120.032. Intensive program prisons

(A) No later than January 1, 1998, the department of rehabilitation and correction shalldevelop and implement intensive program prisons for male and female prisoners other thanprisoners described in division (B)(2) of this section. The Intensive program prisons shallinclude institutions at which imprisonment of the type described in division (B)(2)(a) ofsection 5120..031 [5120..03.1] o.f the Reyised Code is provided and prisons that focus oneducational achievement, vocational training, alcohol and other drug abuse treatment,community service and conservation work, and other intensive regimens or combinations ofintensive regimens.

(B) (1) (a) Except as provided in division (B)(2) of this section, if an offender is sentenced toa term of imprisonment under the custody of the department, if the sentencing court eitherrecommends the prisoner for placement in the intensive program prison under this section ormakes no recommendation on placement of the prisoner, and if the department determinesthat the prisoner is eligible for placement in an intensive program prison under this section,the department may place the prisoner in an intensive program prison established pursuantto division (A) of this section. If the sentencing court disapproves placement of the prisonerin an intensive program prison, the department shall not place the prisoner in any intensiveprogram prison.

If the sentencing court recommends a prisoner for placement in an intensive programprison and if the department subsequently places the prisoner in the recommended prison,the department shall notify the court of the prisoner's placement in the recommendedintensive program prison and shall include with the notice a brief description of theplacement.

If the sentencing court recommends placement of a prisoner in an intensive programprison and the department for any reason does not subsequently place the prisoner in therecommended prison, the department shall send a notice to the court indicating why theprisoner was not placed in the recommended prison,

If the sentencing court does not make a recommendation on the placement of a prisonerin an intensive program prison and if the department determines that the prisoner is eligiblefor placement in a prison of that nature, the department shall screen the prisoner anddetermine if the prisoner is suited for the prison. If the prisoner is suited for the intensiveprogram prison, at least three weeks prior to placing the prisoner in the prison, thedepartment shall notify the sentencing court of the proposed placement of the prisoner in theintensive program prison and shall include with the notice a brief description of theplacement. The court shall have ten days from receipt of the notice to disapprove theplacement. If the sentencing court disapproves the placement, the department shall notproceed with it. If the sentencing court does not timely disapprove of the placement, thedepartment may proceed with plans for it.

If the department determines that a prisoner is not eligible for placement in an intensiveprogram prison, the department shall not place the prisoner in any intensive program prison.

(b) The department may reduce the stated prison term of a prisoner upon the prisoner'ssuccessful completion of a ninety-day period in an intensive program prison. A prisonerwhose term has been so reduced shall be required to serve an intermediate, transitional typeof detention followed by a release under post-release control sanctions or, in the alternative,shall be placed under post-release control sanctions, as described in division ( B)(2)(b)(ii) ofsection 5120 _031 C5120.03.1] of the Revised Code. In either case, the placement under post-release control sanctions shall be under terms set by the parole board in accordance withsection 2967.28 of the Revised Code and shall be subject to the provisions of that sectionand section.__2929.141[2929.14..1] of the RevisedCode with respect to a violation of anypost-release control sanction.

(2) A prisoner who is in any of the following categories is not eligible to participate in anintensive program prison established pursuant to division (A) of this section:

3°

(a) The prisoner is serving a prison term for aggravated murder, murder, or a felony ofthe first or second degree or a comparable offense under the law in effect prior to July 1,1996, or the prisoner previously has been imprisoned for aggravated murder, murder, or afelony of the first or second degree or a comparable offense under the law in effect prior toJuly 1, 1996.

(b) The prisoner is serving a mandatory prison term, as defined in section 2929.01 of theRevised Code.

(c) The prisoner is serving a prison term for a felony of the third, fourth, or fifth degreethat either is a sex offense, an offense betraying public trust, or an offense in which theprisoner caused or attempted to cause actual physical harm to a person, the prisoner isserving a prison term for a comparable offense under the law in effect prior to July 1, 1996,or the prisoner previously has been imprisoned for an offense of that type or a comparableoffense under the law in effect prior to July 1, 1996.

(d) The prisoner is serving a mandatory prison term in prison for a third or fourth degreefelony OVI offense, as defined in section 2929.01 of the Revised Code, that was imposedpursuant to division (G)(2) of section 2929.13 of the Revised Code.

(C) Upon the implementation of intensive program prisons pursuant to division (A) of thissection, the department at all times shall maintain intensive program prisons sufficient innumber to reduce the prison terms of at least three hundred fifty prisoners who are eligiblefor reduction of their stated prison terms as a result of their completion of a regimen in anintensive program prison under this section.

lot

APPcimix P

5120 Department of Rehabilitation and Corrections - Administration and DirectorChapter 5120-11 Intensive Program Prisons

OAC Ann. 5120-11-03 (2009)

5120-11-03. Intensive program prison eligibility and selection criteria.

(A) Selection for an intensive program prison is open to any eligible prisoner in accordancewith this rule, regardless of race, sex, religion, age, disability or national origin. The wardensof reception centers and Institutions with an intensive program prison shall designate staff toscreen for eligibility into that program based on the requirements in this rule.

•(B) If a court's sentencing entry specifically expresses disapproval, objection or ineligibilityfor placement in an intensive program prison, the prisoner is ineligible for such placement. Ifthe court's sentencing entry specifically expresses approval of or recommends placement inan intensive program prison, or if the sentencing entry is silent regarding such placement,the prisoner shall be screened for placement according to this rule. A prisoner meeting therequirements of paragraph (C) of this rule shall receive an explanation of the programincluding, if applicable, the thirty-day curriculum on motivation, in order to determine theprisoner's desire to participate.

(C) A prisoner is eligible to participate in the program, if he meets the applicable statutoryeligibility requirements set forth in paragraph (C)(1) or paragraph (C)(2) or paragraph (C)(3)of this rule.

(1) The following requirements apply to a person upon whom a court imposed a term ofimprisonment prior to July 1, 1996, and a person upon whom a court, on or after July 1,1996, and in accordance with law existing prior to July 1, 1996, imposed a term ofImprisonment for an offense that was committed prior to July 1, 1996. An eligible prisoner:

(a) Has been convicted of or pleaded guilty to, and has been sentenced for a felony ofthe third or fourth degree;

(b) Has not, during the commission of that offense or the offense of indictment, causedphysical harm to any person, as defined in section 2901.01 of_the Revised_Code or made anactual threat of physical harm to any person with a deadly weapon, as defined in section2923.11 of the Revised Code;

C;2-)

(c) Has not been sentenced for an offense with a firearm speciflcation;

(d) Has not been previously convicted of or pleaded guilty to any felony for which,pursuant to sehtence, he was confined for thirty days or more in a correctional institution inthis state or in a similar institution in any other state or the United States;

(e) Is not less than eighteen years of age nor more than thirty years of age at the timeof admission to the department;

(f) Does not have a sentence of actual incarceration; and

(g) Has no conviction for a sex offense, as set forth in Chapter 2907. of the RevisedCode, as it existed prior to July 1, 1996, or any comparable offense under the laws of anyother state or the United States.

(2) The following requirements apply to a person upon whom a court imposed a statedprison term for a non-OMVI offense committed on or after July 1, 1996. A prisoner who hasbeen convicted of or pleaded guilty to, and has been sentenced for, a felony is eligible unlessserving a prison term in any of the following categories:

(a) Aggravated murder, murder, or a felony of the first or second degree or acomparable offense under the law in effect prior to July 1, 1996 or the prisoner previouslyhas been imprisoned for aggravated murder, murder, or a felony of the first or seconddegree or a comparable offense under the law in effect prior to July 1, 1996;

(b) A mandatory prison term as designated by the court's sentencing entry;

(c) A felony of the third, fourth, or fifth degree that either is a sex offense, an offensebetraying public trust as indicated by the nature of the offense, an element of the offense orby a finding of the sentencing court of such a sentencing factor, or an offense in which theprisoner caused or attempted to cause actual physical harm to a person, or the prisoner isserving a prison term for a comparable offense under the law in effect prior to July 1, 1996,or the prisoner previously has been imprisoned for an offense of that type or a comparableoffense under the law in effect prior to July 1, 1996;

(d) A mandatory prison term imposed for a third or fourth degree felony OMVI offense,as defined in s_.ecti4p 2929 01of the R.evised Code., that was imposed pursuant to section2929.13 (G)(2) of the Revised Code.

(3) The following requirements apply to a prisoner upon whom a court imposed a statedprison term(s) for third and/or fourth degree felony OMVI offense(s) committed on or afterJuly 1, 1996. That prisoner who has been sentenced to one or more mandatory prison term(s) for third and/or fourth degree felony OMVI offense(s) is eligible to participate in a OMVItreatment program unless any of the following applies regarding that prisoner:

(a) In addition to the mandatory prison term for the third and/or fourth degree felonyOMVI offense(s), the prisoner also is serving a prison term of a type described in paragraph(C)(2)(a), (C)(2)(b), or (C)(2)(c) of this rule. A mandatory prison term, as defined in section2929.01 of the,Revised..Code, does not include a third or fourth degree felony OMVI offensefor ineligibility purposes unless convicted of a specification under section Z941.1413of. theRevised Code.

(b) The prisoner previously has been imprisoned for an offense of a type described inparagraph (C)(2)(a), or (C)(2)(c) of this rule or a comparable offense under the law in effectprior to July 1, 1996.

(D) If an applicant is eligible pursuant to paragraph ( E) and either paragraphs (C)(3) or (C)(2) of this rule and the sentencing entry is silent on the prisoner's placement in an intensiveprogram prison, then the warden or contract monitor, if applicable, shall notify, by certifiedmail, the sentencing judge of its intention to place the applicant in a intensive programprison. If the judge notifies the warden or contract monitor, if applicable, within thirty daysafter the mail receipt, that the judge does not approve intensive program prison for theprisoner, then the warden or contract monitor, if applicable, shall notify, in writing, theprisoner of the disapproved placement. If the sentencing judge does approve intensiveprogram prison for the prisoner or does not notify the warden or contract monitor, ifapplicable, of the disapproved placement within thirty days after the mail receipt, then thedirector may place the prisoner in the program. This notification process does not apply if thesentencing court finds statutory eligibility for the prisoner's placement in an intensiveprogram prison and/or the sentencing entry either approves or recommends such placement.

(E) In determining program approval of eligible prisoners, the warden's designee or contractmonitor's designee, if applicable, shall examine each prisoner's record. No prisoner shall beselected unless the prisoner:

(1) Has not more than sixty months to serve before the expiration of his definite sentenceor he becomes eligible for parole consideration if serving an indefinite sentence, or expirationof his stated prison term. However, if the prisoner is eligible pursuant to paragraph (C)(3) ofthis rule, then the prisoner shall not have more than twenty four months to serve suchsentence or term;

(2) Has a sentence or stated prison term with sufficient time to serve the ninety-dayimprisonment phase of the program;

(3) Has no outstanding felony detainers, felony warrants or pending felony charges;

(4) Has no conviction for an escape as defined in section 2921.34 of the Revised Code, orany comparable offense under the laws of any other state or the United States;

(5) Has been classified as level one or level two security. However, if the prisoner iseligible pursuant to paragraph (C)(3) of this rule, then the prisoner has been classified aslevel one security;

(6) Has not been identified as an active or disruptive security threat group participant;

(7) Has demonstrated an acceptable institutional adjustment and the prisoner's placementin the program Is in the best interests of the department;

(8) Is at least eighteen years of age;

(9) Has completed no more than one intensive program prison placement; and

(10) Has no conviction for illegal conveyance of weapons, drugs or other prohibited itemsonto the grounds of a detention facility or institution in violation of se_c.tio_n_.2..921_36_of theRevised Code.

(F) Eligible prisoners who satisfy the requirements of paragraph (E) of this rule and beingconsidered for placement at Camp REAMS or Camp MERIDIAN, shall be referred to healthprofessionals to undergo medical, only if a medical level two or above, and mental healthonly if a Cl classification, screenings which focus on current physical and mental healthissues which could compromise the prisoner's ability to successfully complete the program.The health professional shall make recommendations on the prisoner's physical and mental

ability to participate in the Camp REAMS or Camp MERIDIAN program.

In the event the prisoner is found to have some physical or mental impairment, the healthprofessional shall consult with the intensive program prison, unit administrator or theprogram supervisor to determine whether the impairment would substantially limit theprisoner's participation in the program. If not substantially limiting, then the prisoner'sparticipation in the program should not be disapproved due to the impairment. Ifsubstantially limiting, then eligibility for the program turns on whether the prisoner canperform the essential functions of the program, with or without a reasonable accommodation.The prisoner must be able to perform, even with a reasonable accommodation for his or herimpairment, the essential functions of the program. If the prisoner cannot so perform thenthe health professional shall not recommend the prisoner for the program. If the prisoner canso perform, even with a reasonable accommodation then the health professional shallrecommend the prisoner for the program. The prisoner must remain physically and mentallycapable of performing the essential functions of the program in all phases of the program inorder to continue participation in the program.

(G) If the prisoner meets the eligibility criteria of paragraph (C) of this rule, therequirements for program selection in paragraph (E) of this rule, and, if applicable, thesentencing judge has not disapproved intensive program prison, the director shall review allrelevant information, including but not Ilmited to, the prisoner's application, the warden'sdesignee's or contract monitor's designee, if applicable, recommendation, the healthprofessionals' recommendations, and any conviction for a felony offense of violence withinthe previous five years, and approve or disapprove the prisoner's placement in the program.Prisoners shall be notified in writing of the director's decision.

(H) A prisoner approved for the program may be confined at the reception center or otherdesignated correctional institution until the prisoner is transferred to the intensive programprison. Acceptance in the intensive program prison shall not be deemed to occur until theprisoner is admitted into such program. A prisoner to be placed into an intensive programprison for an OMVI offense(s) is to be admitted into the program as soon as practicable,given the time period for the program selection process, after arrival at the prison unless therecord officer indicates such an admission date due to the prisoner serving a mandatorysentence of one hundred twenty days or more. A prisoner to be placed into a therapeuticalcohol or other drug intensive program prison shall complete a thirty-day pre-treatmentcurriculum on motivation prior to admittance Into such program.

(I) When a prisoner is accepted to participate in the program, the director shall notify thesentencing court, in writing, pursuant to paragraph (B) of rule 5120-11-21 of theAdministrative Code. If the sentencing court did not disapprove a prisoner's placement in theprogram pursuant to notice set forth in paragraph (D) of this rule and, in any event, if suchplacement does not occur, the director shall notify, in writing, the court of the reasonstherefore.

(3) Participation in the program is a privilege. No prisoner has a right to participate or tocontinue to participate because he meets the eligibility and selection criteria. However, oncea prisoner is admitted into the program, the prisoner is not permitted to voluntarily withdrawfrom the program within twenty-one days of admittance.

History: Effective : 12/29/2008.

R.C. 119.032 review dates: 01/12/2013.

Promulgated Under: 119.03.

Statutory Authority: 5120.01, 5120.42, 5120.031.